R. v. Schneider (A.M.) et al., 2004 NSCA 99

• Judge: Cromwell, Saunders and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: August 17, 2004
• Jurisdiction: Nova Scotia
• Citations: 2004 NSCA 99;(2004), 226 N.S.R.(2d) 110 (CA)

R. v. Schneider (A.M.) (2004), 226 N.S.R.(2d) 110 (CA);

 714 A.P.R. 110

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2004] N.S.R.(2d) TBEd. AU.027

Annie Marthe Schneider and Marguerite Schneider (appellants) v. Her Majesty The Queen (respondent)

(CAC 200119; 2004 NSCA 99)

Indexed As: R. v. Schneider (A.M.) et al.

Nova Scotia Court of Appeal

Cromwell, Saunders and Fichaud, JJ.A.

August 17, 2004.

Summary:

The accused (mother and daughter) were convicted of criminal harassment and mischief respecting conduct towards a neighbour. Both accused were tried in French under s. 530 of the Criminal Code. The trial judge sentenced the daughter to three months' imprisonment and three years' probation. The mother was given a suspended sentence plus three years' probation. The accused appealed their convictions and sentences. The summary conviction appeal court affirmed the convictions but reduced the sentences to two months' imprisonment plus one year's probation (daughter) and a suspended sentence plus one years' probation (mother). The accused appealed, submitting that (1) their s. 530 language rights were not respected; (2) there was bias by the trial judge, misconduct by the Crown and police, and abuse of process; (3) an unreasonable search and seizure resulted in the admission of inadmissible evidence; (4) their s. 11(b) Charter right to be tried within a reasonable time was violated; (5) the verdicts were unreasonable; and (6) the sentences, as varied by the summary conviction appeal court, were unfit.

The Nova Scotia Court of Appeal dismissed the appeal.

Civil Rights - Topic 2947

Language - Criminal proceedings - Right to trial in either official language - The accused (mother and daughter) were charged with criminal harassment and mischief -The mother spoke only French and elected trial in French under s. 530 of the Criminal Code - The daughter, fluently bilingual, wished a separate trial in English - The court exercised its discretion to order a joint bilingual trial before a bilingual judge, with the assistance of an interpreter - Two severance applications were denied -The daughter argued that her s. 530 right to be tried in English was violated by refusing severance - The Nova Scotia Court of Appeal affirmed that the court properly exercised its discretion to order a joint bilingual trial instead of two separate unilingual trials in different languages - The latter would result in separate duplicative trials, where the evidence was the same for both accused and the daughter represented both herself and her mother - Severance was inappropriate - See paragraphs 11 to 25.

Civil Rights - Topic 2947

Language - Criminal proceedings - Right to trial in either official language - The accused (mother and daughter) were charged with criminal harassment and mischief -The mother spoke only French and elected trial in French under s. 530 of the Criminal Code - The daughter, fluently bilingual, wished a separate trial in English - The court exercised its discretion to order a joint bilingual trial before a bilingual judge, with the assistance of an interpreter - The accused submitted that their s. 530 rights were denied because the Crown prosecutor was not sufficiently fluent in French - The Nova Scotia Court of Appeal rejected this ground of appeal - The prosecutor was sufficiently fluent in French to satisfy the requirements of s. 530 - See paragraphs 26 to 30.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - The accused were charged in Provincial Court with criminal harassment and mischief - There was a 12 month delay between the laying of the information and the start of the trial - The accused had twice asked that the trial be postponed - The trial lasted six days spread over 10 months - The Nova Scotia Court of Appeal held that the accused's s. 11(b) Charter right to be tried within a reasonable time was not denied - The delay resulted from the Provincial Court's crowded docket, the need to accomodate the schedules of Crown and defence witnesses, and the added time required by the accused's decision to represent herself - See paragraphs 72 to 85.

Courts - Topic 592

Judges - Duties - Duty to conduct fair and impartial proceedings - [See Criminal Law - Topic 7663 ].

Criminal Law - Topic 4482

Procedure - Trial - Joint or separate trials of two or more persons - [See first Civil Rights - Topic 2947 ].

Criminal Law - Topic 7471.1

Summary conviction proceedings - Appeals - General - Transcripts - Two accused jointly tried in a bilingual trial were convicted of criminal harassment and mischief - The conviction was affirmed by the summary conviction appeal court - The accused submitted that the transcript of the spoken French at trial was inaccurate and insufficient - The Nova Scotia Court of Appeal dismissed this ground of appeal - There was no serious possibility of an error in a missing portion of the transcript or that any omission deprived the appellant of a ground of appeal - See paragraphs 36 to 48.

Criminal Law - Topic 7663

Summary conviction proceedings - Appeals - Grounds - Bias - The accused and her mother were convicted of criminal harassment and mischief respecting conduct towards a neighbour - The accused, representing herself and her mother, refused to abide by the trial judge's directions on proper conduct of a trial and became belligerent and disrespectful towards the judge - The trial judge was forced to cut off the accused's examination and cross-examination of witnesses and refused to allow the accused to call evidence that was either inadmissible or not relevant - The accused alleged bias by the trial judge - The Nova Scotia Court of Appeal held that there was no bias - The accused was basically unhappy with steps taken by the judge to balance a self-represented accused's rights with the need for a fair trial - The attack on the judge's impartiality was groundless - In fact, the judge acted with patience and constraint in controlling a difficult accused's improper and disrespectful conduct - See paragraphs 50 to 71.

Cases Noticed:

R. v. MacKenzie (N.M.) (2004), 221 N.S.R.(2d) 51; 697 A.P.R. 51; 2004 NSCA 10, refd to. [para. 11].

R. v. Beaulac (J.V.), [1999] 1 S.C.R. 768; 238 N.R. 131; 121 B.C.A.C. 227; 198 W.A.C. 227, refd to. [para. 11].

R. v. McNamara (No. 1) (1981), 56 C.C.C.(3d) 193 (Ont. C.A.), refd to. [para. 22].

R. v. Garcia (1990), 58 C.C.C.(3d) 43 (Que. Sup. Ct.), refd to. [para. 23].

R. v. Lapointe (1981), 64 C.C.C.(2d) 562 (Ont. G.S.P.), refd to. [para. 24].

R. v. Rodrigue (J.J.) (1994), 91 C.C.C.(3d) 455 (Yuk. Terr. S.C.), affd. (1995), 53 B.C.A.C. 275; 87 W.A.C. 275; 95 C.C.C.(3d) 129 (Yuk. Terr. C.A.), leave to appeal denied [1995] 3 S.C.R. vii; 193 N.R. 318; 68 B.C.A.C. 240; 112 W.A.C. 240, refd to. [para. 33].

R. v. Hayes, [1989] 1 S.C.R. 44; 89 N.R. 138; 89 N.S.R.(2d) 286; 227 A.P.R. 286; 68 C.R.(3d) 245; 48 C.C.C.(3d) 161, refd to. [para. 44].

R. v. S.R. (1993), 26 B.C.A.C. 149; 44 W.A.C. 149 (C.A.), refd to. [para. 46].

R. v. Noble (S.J.) (1996), 75 B.C.A.C. 98; 123 W.A.C. 98; 106 C.C.C.(3d) 161 (C.A.), affd. [1997] 1 S.C.R. 874; 210 N.R. 321; 89 B.C.A.C. 1; 145 W.A.C. 1; 146 D.L.R.(4th) 385, refd to. [para. 46].

Syndicat canadien de la fonction publique, section locale 301 v. Montréal (Ville), [1997] 1 S.C.R. 793; 210 N.R. 101; 144 D.L.R.(4th) 577, refd to. [para. 46].

R. v. Dobis (M.) (2002), 157 O.A.C. 83; 163 C.C.C.(3d) 259 (C.A.), refd to. [para. 46].

R. v. Taylor (J.W.) (1995), 142 N.S.R.(2d) 382; 407 A.P.R. 382 (C.A.), leave to appeal dismissed (1998), 231 N.R. 398; 174 N.S.R.(2d) 400; 532 A.P.R. 400 (S.C.C.), refd to. [para. 57].

R. v. Howell (D.M.) (1995), 146 N.S.R.(2d) 1; 422 A.P.R. 1 (C.A.), affd. [1996] 3 S.C.R. 604; 203 N.R. 247; 155 N.S.R.(2d) 247; 457 A.P.R. 247, refd to. [para. 58].

R. v. Kim (F.) (2004), 195 B.C.A.C. 6; 319 W.A.C. 6 (C.A.), refd to. [para. 64].

R. v. Fabrikant (V.) (1995), 67 Q.A.C. 268; 97 C.C.C.(3d) 544 (C.A.), leave to appeal dismissed, [1995] 3 S.C.R. vi; 193 N.R. 400; 63 Q.A.C. 240, refd to. [para. 64].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201, refd to. [para. 68].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241; 118 C.C.C.(3d) 353; 151 D.L.R.(4th) 193; 10 C.R.(5th) 1, refd to. [para. 68].

R. v. Morris (W.R.) (1998), 173 N.S.R. (2d) 1; 527 A.P.R. 1; 134 C.C.C.(3d) 539 (C.A.), refd to. [para. 75].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [para. 75].

R. v. Yorke (1992), 115 N.S.R.(2d) 426; 314 A.P.R. 426 (C.A.), affd. [1993] 3 S.C.R. 647; 158 N.R. 396; 125 N.S.R.(2d) 238; 349 A.P.R. 238; 84 C.C.C.(3d) 286, refd to. [para. 75].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1; 84 C.C.C.(3d) 173; 24 C.R.(4th) 1, refd to. [para. 75].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241; 71 C.C.C.(3d) 1, refd to. [para. 81].

R. v. Potvin (R.), [1993] 2 S.C.R. 880; 155 N.R. 241; 66 O.A.C. 81; 83 C.C.C.(3d) 97; 23 C.R.(4th) 10, refd to. [para. 84].

R. v. Corbett, [1975] 2 S.C.R. 275; 1 N.R. 258, refd to. [para. 86].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351; 36 C.C.C.(3d) 417; 59 C.R.(3d) 108; 17 B.C.L.R.(2d) 1; [1987] 6 W.W.R. 97; 43 D.L.R.(4th) 424, refd to. [para. 86].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 143 C.C.C.(3d) 1; 32 C.R.(5th) 1, refd to. [para. 86].

R. v. Francis (M.A.) (2001), 190 N.S.R.(2d) 138; 594 A.P.R. 138 (C.A.), refd to. [para. 86].

R. v. Diggs, 2004 NSCA 16, refd to. [para. 86].

R. v. Lafrance, [1975] 2 S.C.R. 201, refd to. [para. 93].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269; 89 C.C.C.(3d) 1; 29 C.R.(4th) 1, refd to. [para. 93].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164; 74 C.C.C.(3d) 134; 13 C.R.(4th) 257, refd to. [para. 99].

R. v. Patriquin (M.A.) (2004), 221 N.S.R.(2d) 370; 697 A.P.R. 370; 2004 NSCA 27, refd to. [para. 100].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 530, sect. 530.1 [para. 9].

Authors and Works Noticed:

Ewaschuk, Eugene G., Criminal Pleadings and Practice in Canada (2nd Ed.) (2004 Looseleaf Update), vol. 1, c. 9:13000, c. 12:4000 [para. 93].

Counsel:

Annie Marthe Schneider, on her own behalf and on behalf of her mother, appellants;

Pierre Muise, for the respondent.

This appeal was heard on January 19, 2004, at Halifax, N.S., before Cromwell, Saunders and Fichaud, JJ.A., of the Nova Scotia Court of Appeal.

On August 17, 2004, the judgment of the Court of Appeal was delivered in both official languages by the Court.